Citation Nr: 0620081
Decision Date: 07/11/06 Archive Date: 07/21/06
DOCKET NO. 04-21 987 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for post-
traumatic stress disorder (PTSD).
2. Entitlement to service connection for hypertension, to
include on a secondary basis.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Carole R. Kammel, Counsel
INTRODUCTION
The veteran served on active duty from June 1969 to June
1971. He served in the Republic of Vietnam from November 19,
1969 to November 2, 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana, wherein the RO denied service
connection for PTSD, hypertension and coronary artery
disease. The veteran timely appealed this determination to
the Board. By a March 2005 rating action, the RO denied
service connection for hypertension on both secondary and
direct incurrence bases; an April 2004 statement of the case
addressed the regulations pertaining to secondary service
connection, i.e., 38 C.F.R. § 3.310 (2005). Thus, the Board
has framed the issue regarding service connection for
hypertension as that listed on the title page.
By a May 2005 rating action, the RO granted service
connection for coronary artery disease, and assigned an
initial 10 percent evaluation, effective December 2, 2003.
As the RO has awarded service connection for the
aforementioned issue, it has been resolved and is no longer
on appeal. To the Board's knowledge, the veteran has not
expressed disagreement either with the assigned disability
rating or the effective date assigned to his coronary artery
disease. See Grantham v. Brown,
114 F.3d 1156 (Fed. Cir. 1997) [where an appealed claim for
service connection is granted during the pendency of the
appeal, a second notice of disagreement must thereafter be
timely filed to initiate appellate review of the claim
concerning the compensation level assigned for the
disability]. Thus, the only two issues remaining for
appellate consideration, are the ones listed on the front
page of this decision.
The Board notes that a review of the record raises an
inferred issue of whether new and material evidence has been
received to reopen an acquired psychiatric disorder, to
include depression, other than PTSD. In addition, in a
January 2005 statement to the RO, the veteran appeared to
have raised the issue of entitlement to service connection
for a right eye disorder. As these issues have not been
developed for appellate consideration, it is referred to the
RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA) was enacted. VCAA has since been codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002) this change in the law is applicable to all claims
filed on or after the date of enactment of VCAA, or filed
before the date of enactment and not yet final as of that
date. The Board has considered this legislation, but finds
that, additional development is required, as enumerated in
the discussion below.
In this case, by a July 1994 rating action, the RO denied a
claim for service connection for an acquired psychiatric
disorder, to include PTSD. The RO informed the veteran of
their decision that same month.. The veteran did not
initiate an substantive appeal within the time period
allowed. 38 U.S.C.A. § 7105
(West 1991); 38 C.F.R. § 20.302 (2004). Thus, the July 1994
rating decision therefore became final. Id. In October
2002, the veteran sought to reopen a claim for service
connection PTSD.
The Board notes that the RO has not informed the veteran of
the provisions of 38 C.F.R. § 3.156 (2005), regulations which
are relevant to his new and material claim, in either letters
to the appellant, dated in November 2002 and January 2005, an
April 2004 statement of the case or May 2005 supplemental
statement of the case, wherein the RO framed the issue as
entitlement to service connection for PTSD. Thus, it
appears, that the RO has reopened the veteran's claim for
service connection for PTSD; however, the Board must
nevertheless address this question anew. This is so because
it determines the Board's jurisdiction to reach the
underlying claim and to adjudicate the claim de novo.
Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the
Board finds that no such evidence has been offered, that is
where the analysis must end, and what the RO may have
determined in this regard is irrelevant. Id. To ensure that
the veteran is aware of what is required of him to reopen his
previously denied claim for service connection for PTSD, a
remand is required. Without this notice to the veteran, the
Board can not be assured that he has been given an
opportunity to argue his case and present evidence that might
serve to reopen his claim of entitlement to service
connection for PTSD. In this regard, the RO must contain in
the notice to the appellant the reasons for their denial of
the appellant's claim for service connection for PTSD in July
1994 (i.e., existence of a diagnosis of PTSD).
See Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31,
2006);
In addition, a review of the claims file reflects that
beginning in 1993, the veteran sought treatment for his
hypertension and PTSD from the VA Medical Center (VAMC) Allen
Park, Michigan and the VA Center in Lincoln Park (see,
Veteran's Application for Compensation and/or Pension,
received by the RO in October 2002, and January 2003 VA PTSD
examination report, respectively). In addition, in June
2002, the veteran was admitted to the VA hospital in Battle
Creek, Michigan for substance abuse (see, January 2003 VA
PTSD examination report).
Records from all of the aforementioned VA facilities,
however, are absent from the claims file. As these treatment
records might contain information that is relevant to both of
the claims on appeal, they should be secured on remand to the
RO.
See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical
records are in constructive possession of the agency, and
must be obtained if the material could be determinative of
the claim).
At the close of a January 2003 VA PTSD examination, the
examiner indicated that if records from the appellant's
numerous previous substance abuse treatment programs were
available, that it might be clearer if Vietnam trauma was an
ongoing theme in his subjective complaints during such
treatments. In this regard, the VA examiner indicated that
in January 1992, and in the calendar year 2000, the appellant
had sought treatment for substance abuse at two private
facilities: Maragrove Clinic and Harbor Lights, both located
in Detroit, Michigan. In accordance with the recommendation
of the January 2003 VA examiner, the Board finds that records
of the veteran's treatment for substance abuse from the
aforementioned private treatment facilities should also be
secured on remand to the RO as they might contain information
that is pertinent to the claim for service connection for
PTSD based on new and material evidence.
Finally, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. In the
present appeal, the veteran was provided with notice of what
type of information and evidence was needed to substantiate
his claims for service connection for PTSD and hypertension,
to include on a secondary basis. (Parenthetically, and as
noted in the preceding paragraphs, the veteran has not been
provided notice of the information and evidence needed to
substantiate his claim for service connection for PTSD, based
on new and material evidence), but he was not provided with
notice of the type of evidence necessary to establish a
disability rating or effective date for the disabilities on
appeal. As these questions are involved in the present
appeal, this case must be remanded for proper notice under
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs
the veteran that a disability rating and effective date for
the award of benefits will be assigned if service connection
is awarded with respect to either claim, and also provides
the veteran an explanation as to the type of evidence that is
needed to establish both disability rating(s) and effective
date(s) with respect to the disabilities on appeal.
Accordingly, the case is REMANDED to the RO, via the AMC, for
the following action:
1. Please send the veteran a corrective
VCCA notice under 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b), that includes
an explanation as to the information and
evidence needed to establish disability
ratings and effective dates for the
claims on appeal: (1) entitlement to
service connection for PTSD, based on new
and material evidence; and (2)
entitlement to hypertension, to include
on a secondary basis, as outlined by the
Court in Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
2. As part of this corrective notice,
the letter must contain a description of
the evidence that would be necessary to
substantiate the claim for service
connection for PTSD based on new and
material evidence by informing the
veteran of the element or elements
required to establish service connection
that were found insufficient in the RO's
July 1994 denial (i.e., evidence that he
currently has a diagnosis of PTSD). The
veteran should be asked to submit all
pertinent information or evidence in his
possession. 38 C.F.R. § 3.159 (2005).
Kent v. Nicholson,
No. 04-181 (U.S. Vet. App. March 31,
2006).
3. The RO should ask the veteran to
provide the names, addresses, and
approximate dates of treatment of all
health care providers, VA and private,
who have treated him for PTSD and
hypertension since his discharge from
service in June 1971. After securing any
necessary authorizations, the RO should
request copies of all indicated records
which have not been previously secured
and associate them with the claims file,
to specifically include all clinical
treatment reports from the Allen Park
VAMC, dated from 1993, and records, dated
in June 2002, from the VA hospital in
Battle Creek, Michigan. Also, all
outpatient reports, dating from July 1993
to June 1994, from the Lincoln Park
Veteran Center (see, January 2003 VA PTSD
examination report). In addition, all
private treatment records should be
obtained from the Maragrove Clinic and
Harbor Lights, both located in Detroit,
Michigan (see, January 2003 VA
examination report). Failures to respond
or negative replies should be noted in
writing and also associated with the
claims file.
The RO should assist the veteran in
obtaining evidence by following the
procedures set forth in
38 C.F.R. § 3.159 (2005). If records
sought are not obtained, the RO should
notify the veteran and his
representative of the records that were
not obtained, explain the efforts that
were taken to obtain them and provide
the appellant an opportunity to submit
them.
4. Thereafter, the RO should
readjudicate the issues of whether new
and material has been received to reopen
a previously denied claim of entitlement
to service connection for PTSD, in light
of pertinent law and evidence, to
specifically include 38 C.F.R. § 3.156
(2004) and Kent v. Nicholson, No. 04-181
(U.S. Vet. App. March 31, 2006), and
entitlement to service connection for
hypertension, to include on a secondary
basis.
If any of the benefits sought on appeal
remain denied, the veteran and his
representative should be provided with a
supplemental statement of the case
(SSOC). The SSOC should contain notice
of all relevant actions taken on the
claims, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal since the SSOC,
issued by the RO in May 2005. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO. The veteran has the right to submit additional
evidence and argument on the matters the Board has remanded
to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment by the
RO. The law requires that all claims that are remanded by
the Board or Court for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).